Hall v. Staples , 1882 Me. LEXIS 126 ( 1882 )

DaNEOUtii, J.

It is admitted that the title to the land in. question was originally in the plaintiff and so remains unless, taken from him by a levy in fayor of Haynes H. Harden, under-whom the defendant claims, and the only question is, as to the validity of that levy.

The first objection is, that the certificate of the oath administered to the appraisers was not made upon the back of the execution, but on a separate piece of paper and attached to it. This cannot be considered a compliance with the statute under-which this levy was made and as it now is. Under the statute of 1821, under which the decision in Phillips v. Williams, 14 Maine, 411, relied upon in the argument, was made, no certificate, from the magistrate administering the oath was necessary. The; return of the officer that he had caused the appraisers to bo sworn was the sufficient and only evidence required of that fact. In the revision of 1841, c. 94, § 4, it is provided that the appraisers, shall be sworn before a justice of the peace, "and such justice shall make his certificate on the back of said execution, of his. having administered such oath.” This provision, enlarged so as. to authorize the officer to administer the oath, is continued to the present time. In E. S., c. 76, § 2, it reads, "and a certificate of the oath shall be made, stating the date of its administra'tion, on the back of the execution, by the person who administered it.” The meaning of this language would seem to be unmistakable. That which is written upon a separate piece of paper is not upon the "back of the execution” even though the. paper may be, at •one corner, affixed to it. If it were affixed throughout so that .it could not be removed, it might become a part of the execution • anda compliance with the law but not otherwise. That this • construction of the statute is in accordance with the intention of ' the legislature, is evident, not only from the language used but ; also from another provision of the statute relating to the same ¡general, subject. By the revision of T857, c. 76, § 3, the appraisers .are to make their return " on the back of the execution.” In 1863, c. 165, this was amended by adding the words, ‘" or annexed to the execution,” leaving the provision in relation to ' the certificate of the oath the same as before. Thus showing clearly "that the legislature understood that a return "on the back” was 'not the same as one "annexed,” and although it might seem •desirable to change- the law in respect to the return of the • appraiser, it was not so in respect to the certificate.

But this provision may be considered as directory to the officer rather than vital to the levy. .The oath is the essential thing. It is necessary, to authorize the appraisers to proceed, as much •as the execution itself. It is proper therefore, that the evidence •of it should be upon and a part of the execution, especially as that is the most certain way of preserving it., Possibly as against •a subsequent attaching creditor, or bona fide purchaser it may be the only legitimate evidence. But in this case it is the debtor ¡himself who seeks to take advantage of the omission. He has •suffered no harm, for the evidence is abundant that the oath was •duly administered and all that was necessary to secure his rights 'in this respect was done. On the other hand so far as appears the defendant is an innocent purchaser from him in whose behalf the levy was made. The levy was duly recorded and upon that record he had a right to rely. It does not appear that the record disclosed any such omission as is now claimed. Under these circumstances it would be proper to allow an amendment if one were needed. The lapse of time is no objection, for it does not appear that the defendant is responsible for that, but rather the-plaintiff. lie is the moving party and it is not for him to complain of a delay caused by a neglect on his part to assert his rights. This alleged defect in the levy must therefore fail to assist the plaintiff'in maintaining his action.

The other two objections to the levy may properly be considered as one. It is agreed that by the officer’s return and certificate, it appears that George G. Allen was chosen and sworn as one of the appraisers, while their return is signed by G. E. Allen. The return of the officer and of the appraisers, which are admitted to be correct, must show that in fact the same man, who acted, was properly chosen and sworn. This is the only inference which can be drawn from the papers, and no harm can, therefore, have resulted to any one on account of the clerical mistake in the initial of the middle name. This cannot avail the plaintiff. Boynton v. Grant, 52 Maine, 220.

Judgment for defendant.

Appleton, C. J., Walton, Yergust, Peters and SymoNds, JJ., concurred.